Republic v Lesire Ole Kipees [2017] KEHC 199 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO. 96 OF 2009

REPUBLIC.......................................................STATE

VERSUS

LESIRE OLE KIPEES.............................ACCUSED

JUDGMENT

The accused LESIRE OLE KIPEES faces a charge of MURDER CONTRARY TO SECTION 203 as read with SECTION 204 OF THE PENAL CODE.

The particulars of the charge were that

“On the 15th day of November, 2009 at Olpito Village in Narok North District of the Rift Valley Province, murdered OBUBA OSONGO”

The accused pleaded ‘Not Guilty’ to the charge. His trial commenced on 23/3/2013 before Hon. Justice Anyara Emukule (retired) who heard the first  two (2) prosecution witnesses. After that Hon. Lady Justice Hellen Omondi took over the matter and heard the evidence of the 3rd to 5th prosecution witnesses. Thereafter Hon. Lady Justice Mshilla took over the case and recorded the evidence of the 6th and 7th prosecution witnesses. At that point the prosecution closed its case.

I then took over the case and recorded the defence of the accused person. Therefore a total of four (4) Judges were involved in the hearing of this matter.

The brief facts of the case were as follows; PW3 ALLAN MUSEINI NAEKU a farmer in the Siyabei area of Narok told the court that people in the area were agitated because a group of poachers were engaged in setting traps at the streams where their animals used to go to drink. The traps would catch some of the farmer’s animals which would then be slaughtered and the meat sold. PW3 and the other farmers reported these incidences of poaching to the Kenya Wildlife Society.

On 15/11/2009 the accused who was a KWS Officer was sent to investigate the complaints. He went to the Siyabei area in the company of PW1 MEITEKINK OLE NAEKU and PW3. They all went to the river where they recovered some of the snares. They were informed that the deceased was one of the people who had been setting those traps. The accused, PW1 and PW3 traced the deceased at a drinking den. Upon being questioned the deceased admitted that he had some Buffalo meat in his hone. He led the accused to his house where they found some Buffalo meat being dried.

The deceased then volunteered to lead the group to the home of another man with whom the accused claimed he used to set the traps. They all left together walking through the forest. Somewhere along the way the deceased changed his mind and said he would not identify his accomplice.

At that point the accused decided to arrest the deceased and moved to handcuff him. The deceased who was armed with a panga resisted the arrest and raised his panga threatening to cut the accused. The accused then fired his gun at the deceased and shot him in the head. The deceased fell down dead. The matter was reported to the KWS headquarters. The accused was arrested and then later charged with the offence of murder.

At the close of the prosecution case the accused was found to have a case to answer and was placed onto his defence. He gave a sworn defence in which he denied the charge of murder. The accused pleaded that he had acted in self defence.

This court must now analyze the evidence on record to determine whether the charge of murder has been proved beyond reasonable doubt. Section 203 of the Penal Code Cap 61 Laws of Kenya defines the offence of murder in the following terms

“Any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder”.

Therefore in order to prove murder the prosecution must adduce evidence to prove beyond reasonable doubt the following key ingredients of the offence.

1. The fact as well as the cause of death of the deceased.

2. Proof that the accused by an unlawful act or omission caused the death of the deceased.

3. Proof that said unlawful act or omission was committed by malice aforethought.

The fact of the death of the deceased is not in any doubt. PW1 and PW3 were both present when the deceased was shot.

The cause of death of the deceased was equally proved by the evidence of PW7 GERISHON ABAKALWA the Director for Health Services in Narok who conducted the autopsy on the body of the deceased. PW7 told the court that he noted a clear entry wound to the right side of the skull with fracture displacement of the left temporal bone. He also noted severe brain laceration and a gaping wound on the right ear. His opinion was that these injuries were caused by a gunshot wound. PW7 opined that the cause of death was ‘raised intracranial pressure due to through and through missile in the head due to a gunshot wound’.

PW7 filled and signed the post-mortem report which he has produced in court as an exhibit.

From this evidence it is clear that the deceased met his death due to a gunshot wound.

The next question requiring an answer is whether it was the accused who shot and killed the deceased.PW1 and PW3 both of whom were present at the scene when the incident occurred told the court that at the material time the accused who was a KWS officer was armed with a rifle.

Both witnesses state that the accused was trying to handcuff the deceased in order to arrest him but the deceased resisted. The deceased who was armed with a panga lifted it attempting to cut the accused. Suddenly PW1 and PW2 heard the sound of a gunshot and the deceased fell to the ground.

PW4 LIVINGSTONE KOECH ARAP KOSKEI was the Sergeant in Charge of the Amoury at KWS North Station. He produced in court as an exhibit the Arms Movement Register running from 30th March, 2009 to 2nd October, 2009. P. exb 3. The register clearly indicates that on 2nd October, 2009 No. 5585 Corporal Kepesi (the accused herein) signed for a gun Serial No. FW1700218 and collected 20 rounds of live ammunition. PW4 produced the firearm in question as an exhibit P. exb 1 as well as 16 live bullets, and four (4) spent cartridges which had been issued to the accused P. exb 2. PW4 told the court that all KWS officers are issued with firearms to use in order to protect wildlife from poaching.

PW5 CHIEF INSPECTOR ALEX MUGINDI MWANDAWIRO is the Firearms Examiner. He produced as an exhibit the report dated 1/12/2009 in respect of the firearm in question P. exb 4. PW5 told the court that the firearm S/No. 1700218 was examined and was found to be in good mechanical condition and was capable of being fired. The ammunitions were also tested and were found to be live. The cartridge recovered at the scene was found to have been fired from the firearm issued to the accused.

More pertinently the accused readily concedes that he had been issued with the firearm as well as the ammunition in question. The accused in his defence also readily admits that it was he who shot and killed the deceased. In the light of this admission by the accused the actus reus of the offence of murder has been proved. I find as a fact that it was the accused who shot and killed the deceased.

The final ingredient requiring proof in this case is the mens rea or the mental element of the offence of murder.Mens rea is described in law as ‘malice aforethought’and is defined by Section 206 of the Penal Code of Kenya. It must be shown that in shooting the deceased as he did the accused was possessed of the intention to kill or to cause grievous harm to the deceased.

Both PW1 and PW3 who were at the scene state that the accused was trying to handcuff the deceased when the deceased began to resist arrest. Both witnesses state that the deceased lifted the panga which he had and aimed to cut the accused. It was at this point that the accused fired the fatal shot from his gun.

In his defence the accused claims that he acted in self-defence. The plea of self defence is a legally recognized and legitimate defence to a charge of murder. In the case of REPUBLIC Vs MC INNES 55 Cr App R 551 it was held that

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do what is reasonably necessary…..”(my own emphasis).

However this particular authority went on to set out the parameters of self defence as follows

“But everything will depend upon the particular facts and circumstances……. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary………”

In this case the accused who was armed with a loaded rifle faced an attack by a panga. The accused was not just an ordinary citizen. He was an officer trained and proficient in the use of firearms. Indeed by his own admission the accused told the court that he had 23 years experience as a KWS officer.

The accused was not alone at the scene. PW1 and PW2 were present. The accused could have sought their assistance to restrain the deceased. Further the accused had the option of running away from the deceased. Being a police officer I have no doubt that the accused is well trained in combat and was quite capable of disarming the deceased without having to shoot him in the head. In PALMER Vs REGINAM [1971] All ER 1085, Lord Morris stated that

“Where a person charged with murder of an assailant relies on self-defence he cannot succeed and has no defence at all, if the jury are satisfied that the killing took place either (1) when the accused has not retreated as far as possible having regard to the attacker (2) if he has used more force than is necessary for mere defence. The result in both cases being that the person who kills is guilty of murder”.

In this case as I have stated the accused had the option to seek help from the two witnesses who were present and he also could have run away. The accused could have shot the deceased in the arm to force him to drop the panga or in the legs to disable him. He did not have to shot the deceased in the head. The lethal force which the accused applied against the deceased was in my view totally disproportionate to the threat which he faced. In MORRIS ALOCH Vs REPUBLIC Cr App 47 of 1996, the court held that

“The weapon used and the part of the body injured must be considered in determining whether malice aforethought was proved”

In this case the deceased was shot in the head. The accused claimed that he was aiming to shot in the air but inadvertently shot the deceased in the head. I do not buy this defence from a trained marksman.

As I observed earlier the accused was not an ordinary layman. He was an officer trained in the use of firearms. The National Police Service Act requires that officers comply with constitutional standards of human rights and fundamental freedoms. The Act has express provisions regarding self defence by police officers (an this includes other uniformed officers), the uses of force and in particular the use of firearms.

Sections 49(5) and (6) of the Act as read with the 6th schedule sets out the circumstances under which an officer may resort to the use of force and use of their firearms. Part A of the 6th schedule provides

“1.    A police officer shall always attempt to use non-violent means first and force may only be employed when non-violent means are inefficient or without any promise of achieving the intended result.

2.     The force used shall be proportional to the objective to be achieved the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the standing orders”.

It is clear that officers though entitled to use fire power when under threat are obliged to first exhaust all non-violent means to diffuse the threat. Secondly an officer may only deploy their guns when other less extreme means have proved inadequate.

The accused herein had several non violent means at his disposal which he failed to deploy. Instead of disarming the accused or running away the accused shot the deceased point blank in the head. His actions cannot be said to have been in self defence as the accused only had a panga. I therefore reject the plea of self defence raised by the accused.

Having said that I am mindful of the fact that the accused did not simply launch an unprovoked attack upon the deceased. From the evidence on record it is clear that the incident occurred during a scuffle between the accused and the deceased. I find that though the actions of the accused were reckless and negligent given the circumstances, malice aforethought has not been proved.

The witnesses state that the deceased had a panga which he was swinging at the accused. It is quite possible that the accused acted in the heat of the moment without considering the consequences of his action. In the circumstances I find that malice aforethought had not been proved. I acquit the accused of the offence of murder and instead convict him of the lesser offence of Manslaughter contrary to Section 202 of the Penal Code.

Dated and delivered in Nakuru this 10th day of November 2017

Ms Mariara for accused

Maureen A. Odero

Judge